Luxembourg, 03/07/2001 (Agence Europe) - The Court of Justice rejected the appeal by French farmers producing biological products and their European distributors against the provision of the 1999 Council regulation, which allows the Danone group to use the term "bio" for its products until 2006, while these products do not come from biological farming.
The appeal by the national federation of biological farming of the French regions (FNAB), the European trade union of processors and distributors of products from biological farming (Setrab) and the Est Distribution Biogram company is inadmissible because they are not "individually concerned" by the provisions in the regulation, explain the European judges.
The fifth chamber of the Court felt that the Court of First Instance did not commit an error in law by noting that the petitioners are not individually concerned by this regulation.
The members of the federation, trade union and Biogram company, even if they have seen their competitive position "considerably affected" by the derogation granted to Danone, are not more concerned by this regulation than all the economic operators active in the markets for biological products which, them too, must confront competition with Danone.
The FNAB claims to federate more than 20 regional biological farmer groupings and represents 70% of the French biological producers. The European trade union announces 70 members. Est Distribution Biogram is a company located in Lorraine since 1975, which sells biological cheese and yoghurts marketed under the brand Biogram. While feeling that the non-biological "bio" products should not replace, in the eyes of the consumers, the true biological products, the Council regulation will permit Danone to win their clientele. The consumers being unable to see the difference between their bio products and products called bio and which do not come from biological farming.
As the appeal was considered inadmissible, they may no longer appeal on the basis of the case. For them, the 1999 regulation was invalid because the Council had adopted it without consulting the Parliament once more as it should have done. They also feel that the derogation enjoyed by Danone had been adopted under conditions, which prove that the Council wanted to protect the sole interests of a single determined economic operator, namely the company Danone.
Danone, they say, is the only brand used in France for non-biological products using the term "Bio". The "Bio Danone" brand was registered on 2 September 1987 and renewed on 26 August 1997 under N°1749028, registered at the national institute for intellectual property.
The Court of First instance contradicted them on this point: other brands may use the "bio" brand in France for "animal" food products (milk, yoghurt, cheese) obtained according to the non-biological method of production.
Thus, Pierre Fabre, has registered the "Bio-Lancyl" brand for his meat, meat extracts, eggs, milk and other milk products; Odo-Sapro, the brand "Bio Cereal" for food products; the Comté nutrition company, "Bio Jolie" for yoghurt drinks, meat extracts and preserved meat, and CLESA for its brands "Bioclesa, Byoclesa and Clesabio" and "Bio CLESA". All may continue to use their brand until 2006.
As with Danone, they are all submitted to three conditions: - their brand must have be registered before 1991; - they must indicate on their labelling that this product is not from biological farming; - in 2006 they will have to remove their brand or conform with the European regulations and produce true "bio" (with problems of supply that this could raise for the large producers, but for experts this is another story: Ed.).
The companies CLEASA, Daone and Gervais Danone as well as the German company SKW Biosystems, also beneficiaries of the non-biological "Bio" brand, had called to appear before the Court of First Instance and, for the first three, also before the Court of Justice. The two jurisdictions replied that the appeal by their adversaries was inadmissible, thus it was necessary to have them speak.
In their appeal before the Court the lawyer for the FNAB, Saetra and Biogram tried to blow the "lock" that prevents individuals from having access to European courts.
In a great majority of cases, the appeals by individuals are considered inadmissible. They are often "directly concerned", the European jurisdictions only recognise them as rarely individually concerned. However, the two conditions must be present to have access to European courts.
Before what many lawyers consider to be a near impossibility to challenge a European regulation by individuals, the FNAB and its allies have called on the Court to do what the French Cour de cassation did in a criminal case where fundamental rights were in question, namely: study the dossier and only afterwards study the issue of the admissibility of the appeal.
The "bio" farmers feel that they should be able to call for the cancellation of the derogation foreseen in the Council regulation, which, according to them, attack the fundamental right guaranteed by the principal of democracy, independently from the issue of knowing if they are directly or individually concerned by the litigious provisions.
Before the judges, the Council was opposed: if each of the citizens from the fifteen Member States could, without any condition, call for the cancellation of an act of a standardising nature to the Community judge, the Court of First Instance and the Court of Justice would be submerged with appeals and would no longer be able to exercise their function of checking legality.
The Council followed it by declaring the appeal inadmissible. Thus it applies the constant very sever jurisdiction for individuals or legal persons (companies).
The experts recall that three residents from Tahiti submitted to the same dangers of radiation due to French nuclear testing as the remainder of the Tahitian population have been considered as being not individually concerned by the Commission decision not to intervene with France for it to stop its testing.
Moreover, Moreover, the Spaniards living close to a power station financed by the European Commission were unable to challenge the legality of the financing because the health risks which, they say, threaten them, were the same for all the neighbours. Spanish ship owners and fishermen were unable to challenge a fishing quota, adopted according to them in an illegal manner, because this quota was also applicable to fishermen from other Member States. (Note: the English language version of the press release concerning this ruling was unavailable).